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Monday, March 19, 2007

The limits of "Advice and Consent"

The current imbroglio over AG AG's handling of the U.S. Atty firings has me wondering: If the Senate wanted Mr. Gonzalez or any other cabinet-level officeholder gone, what are its options?

Its actions in the last few weeks demonstrate it can hold hearings and try to raise a big stink politically to force a resignation/firing.

But what if neither is forthcoming?

Actually, I'm not really concerned about the answer within the current context -- I doubt any of this will matter in 12 months.

But what if there was a truly, inarguably incompetent attorney general serving a second-term President whose VP has no desire to run for office ever again and who doesn't particularly like his own party's leading candidate to replace him. Under such a scenario, the President would be relatively well insulated from political pressure to remove any offending officials no matter how many p.1 headlines there were.

Again, constitutionally, what could the Senate do?

We all know that Art. II, Sec. 2 of the Constitution says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" officials like the AG. But the constitution is silent on whether, once given, the Senate has the power to withdraw that consent.

I have never really thought about this before, but it seems like an interesting question.

If the Senate were to vote tomorrow to withdraw their consent to Gonzalez's service (NY Post Headline: SENATE NOT GA-GA FOR AG AG) and President Bush were to insist he remain in office who would the Supreme Court side with and why?

8 comments:

I checked with a ConLaw professor here at UW and they said the only way to remove the AG would be a formal impeachment proceeding.

So there is no backdoor way for the senate to just withdraw its consent. Which is certainly a relief.

But I wonder where the support for this position is constitutionally. I mean, the Impeachment sections don't specify who they apply to, only that the power rests with the House to indict and the Senate to convict+remove or not.

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." U.S. Const. art. II, sec. 4

Apparently, the congress can impeach and remove "all civil officers of the United States." This would seem to apply to all political appointees, such as cabinet members and US Attorney's. A more interesting question is whether it would apply to civil servants.

I would hope that said lame-duck President (regardless of the political situation of his VP) would hold his duty to the American people and the Constitution (as well as his own reputation currently and in history) in high enough regard to on his own replace a truly, inarguably incompetent Cabinet officer. Inexplicably holding on to an incompetent or possibly undeniably corrupt Cabinet officer could even serve as grounds for the impeachment of said President.

This is not to say that I think AG AG is such an incompetent. I feel that President Bush is well within his right to remove any US Attorney he wishes. Serving "at the pleasure of the President of the United States" should mean just that. It doesn't (or shouldn't) matter if that "pleasure" is based on competence or pure politics. It's been this way ever since Andrew Jackson essentially created the spoils system.

It's unconstitutional for Congress to declare that the President can't fire executive officials (which makes one wonder about "independent administrative agencies.") See Myers v. United States, 272 U.S. 52 (1926). It seems the same logic would apply to preventing the executive from dismissing them.

I really don't think the issue is that the firings were illegal. It is clear that they are not. The bigger issue is that the administration lied to Congress about the reasons (claiming poor performance when they all had been given superior performance reviews).

Unless the allegations are true about Lam being fired because she was about to prosecute a CIA official. I think the case might be made that a firing to obstruct a prosecution would be illegal. But this is highly speculative right now.

The bottom line here, to me, is the arrogant attitude the administration has taken towards Congress (and the public). The Democrats aren't going to take it, and it seems like more than a few Republicans are sick of it.

To be fair, I think part of that "arrogance" is a strong belief in establishing procedural norms, and a separation of where the spheres of authority intersect. The administration takes it too far, of course, in part because I think that when they give Congress the "none of your business" (which it isn't), they forget they're inadvertantly saying to the public "it's none of your business" (which it is).

This is really where AG-AG's incompetence and flat-footedness is cascading. He shoudl have either simply said, "We fired them because we didn't like them any more. Period. Next question?", or better, laid out the reasons why (McKay was publicly insubordinant about various policies, Lam refused to prosecute illegal aliens for a host of crimes such that even Sen. Boxer complained about it in 2006, etc.).

But I have sympathy for the "none of your business" reaction. Congress shoudl not be able to subpoena the minutes to every executive branch meeting, or require sworn, under oath statements regarding every motivation of every decision.

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